How a rogue governor could steal the next presidential election for Trump

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bipartisan group of lawmakers is trying to reform a 135-year-old law to save future elections from being stolen by their own colleagues. But if their well-intentioned attempts prove successful, they may inadvertently create a pathway for a less discussed but more urgent threat: a rogue governor in a swing state like Georgia single-handedly undermining the democratic process.

Congress first passed the Electoral Count Act, or ECA, following the disputed 1876 election between Samuel Tilden and Rutherford B. Hayes, which was marred by allegations of fraud and the disenfranchisement of Black voters. 

But as former President Donald Trump continues to relentlessly push his false claims of a fraudulent presidential election and openly says it should have been “overturned,” some members of Congress want to revise the 19th-century law.

The proposed reforms to the ECA are designed to prevent the executive branch and Congress from undermining elections, as Trump and dozens of Republican members of Congress tried to do by raising objections to results at the state level in Arizona and Pennsylvania, and pressuring former Vice President Mike Pence to overturn the ratification of then-candidate Joe Biden’s Electoral College victory, leading to the January 6 insurrection.

However, the suggested changes to the law would do little to constrain the power of state and local governments. By overseeing vote counting and certifying election results before they are sent to Congress for ratification, these levels of government arguably have as much power, if not more, than Congress and a sitting president to steal an election.

Clarifying that the vice president’s role in certifying elections is entirely ceremonial is an obvious fix that members of both parties would likely get behind. But that wouldn’t stop a future vice president from trying to assert the “Godlike” 12th Amendment authority to disregard the ECA and toss out electoral votes, which is what legal scholar John Eastman unsuccessfully urged Pence to do on January 6.

“It’s a good thing to say, but it doesn’t answer the constitutional question,” Matthew Seligman, a fellow at the Yale Law School Center for Private Law and expert on the ECA, told Insider. 

A ‘very confused, almost unintelligible’ law 

The ECA established a formal process for states to submit their Electoral College votes to be counted by Congress and a necessary but confusingly-phrased mechanism for Congress to resolve a dispute caused by state officials submitting multiple slates of electors. The law’s ambiguous phrasing, for example, creates confusion about when a governor’s signature should determine which slate of electors Congress should count.

While the law undoubtedly helped future Congresses, its convoluted syntax vexes even legal scholars, many of whom have detailed its numerous glaring deficiencies that open the door to partisan election manipulation. 

“The ECA is turgid and repetitious,” legal scholar Stephen Siegel wrote in his seminal 2004 article on the law. “Its central provisions seem contradictory. Many of its substantive rules are set out in a single sentence that is 275 words long. Proponents of the law admitted it was ‘not perfect.’ Contemporary commentators were less charitable.”

Siegel cited an 1888 article by John Burgess, a top political scientist in the late 19th century, who critiqued the ECA as “makeshift” and derided the key section laying out how Congress should handle competing electoral slate submissions as “very confused” and “almost unintelligible.”

A ‘hardline rule’ reining in Congress could embolden bad actors in the states

Scholars say the ECA was designed to encourage Congress to defer to state outcomes and allow for objections to electoral slates in only certain very narrow circumstances, like a state’s governor failing to certify the results on time or electors being bribed.

In recent years, however, those provisions have been intentionally misused by members of Congress — a small number of Democrats in 2005 and 2017, and far more Republicans in 2021 — who objected to counting single slates of electors because they disagreed with various states’ election procedures and were disappointed with the outcome of the presidential election.

David Becker, the executive director of the Center for Election Innovation and Research, told Insider in 2021 that the ECA “clearly wasn’t intended to be a way for members of Congress who simply didn’t like the results to hold up the legitimate election of a president.”

A report by the House Administration Committee’s majority staff and a Washington Post op-ed by four prominent election law scholars argued that Congress should afford itself virtually no room to question a single slate of electors if the state’s election procedures were settled ahead of Election Day — as was the case with the slates of electors objected to in 2021. 

Members of Congress have pushed recently to severely limit those types of objections, but Seligman, the Yale Law fellow, warned in a recent interview with Insider that a “hardline rule” barring congressional objections to such single slates “could be really dangerous” in the political conditions now brewing at the state level. 

Trump is paving the road to 2024 with loyalists at the state level 

Election denial movements have staked their flag in Republican-controlled state legislatures, which have passed dozens of new laws restricting voting and elections, politicized election administration, and pursued costly partisan post-election ballot reviews in places like Arizona and Wisconsin.

Dozens of candidates who have embraced Trump’s lie that the 2020 election was stolen are vying to become their states’ chief election officials and governors. If candidates like Kari Lake in Arizona and David Perdue in Georgia are successful, it would give them final say over whether to certify a slate of electors for a presidential candidate.

Such trends raise the risk of a disputed or possibly stolen election in the 2022 midterms. It also makes the current push to reform the ECA not just about preventing a replay of January 6, but averting a worse crisis that could send the country into a constitutional tailspin. 

In a 2018 report, Seligman outlined four ways Congress and state officials could exploit the existing version of the ECA to subvert a presidential election. He found that the losing political party could have stolen nine of the 34 presidential elections since the ECA’s enactment. 

The most common and popular post-January 6 suggestions for reforming the ECA are a necessary start, according to Seligman, but are ultimately insufficient in fixing the law’s vulnerabilities. 

Both Seligman and the House Committee staff report advocate for increasing the threshold to raise an objection. But that mainly serves to prevent “a spectacle,” Seligman said. He argues a majority of the Senate is unlikely to go along with a plan to reject an electoral slate, even if Republicans win back both chambers of Congress in 2022, likely closing off that route to stealing an election.

A far more urgent and straightforward threat though, according to Seligman, is something he calls the Swing State’s Governor’s Gambit. It would only require a few partisan officials who control the state government in one swing state to submit an illegitimate slate of electors for their party’s losing presidential candidate  — and their party also controlling one chamber of Congress and counting it.

“As a result,” Seligman wrote in a recent report, “a hyperpartisan House of Representatives can collaborate with a swing state’s governor to steal that state’s electoral votes, and under the Act’s existing structure there is nothing the opposing party could do to stop them.”

This plan would enable a governor and chamber of Congress to disenfranchise an entire state. And depending on the Electoral College math, it would allow a party to steal a close presidential election more efficiently and elegantly than the methods that Trump and his allies ham-fistedly tried to use in 2020.

The David Perdue problem shows how one governor can upend a nationwide election

Georgia is one state where the actual mechanics of vote-casting and counting improved in 2020. But the Republican politicians who defended that election are now being punished for it by the leaders of their party. 

Former Sen. David Perdue is mounting a Trump-endorsed primary challenge to Georgia Gov. Brian Kemp, who earned Trump’s wrath for certifying his 2020 election loss. Trump has also endorsed Rep. Jody Hice to primary Georgia’s Republican Secretary of State Brad Raffensperger, who firmly rebuked Trump’s false claims of election fraud in public and refused his private pleas to “find” the 11,780 votes required to overturn his election loss. 

Perdue said in December that he would have not certified the results of the 2020 presidential election in Georgia if he had been the governor at the time. 

Americans don’t directly vote for the president and vice president, but instead for a slate of electors, usually party loyalists, selected ahead of time by each political party. The slate of electors selected by the voters then casts their votes when the Electoral College convenes in December.

If Georgia again votes for the Democratic presidential candidate in 2024, a Republican governor like Perdue could claim widespread fraud, refuse to certify the results, and instead sign a certificate essentially giving the Republican candidate the win. The Democrat’s campaign could seek an injunction in federal court to compel Perdue to certify their candidate’s slate of electors — but it’s unclear if that would work.

A court could choose to do nothing. It could also hold Perdue in civil contempt, which is “a pretty light penalty,” Seligman said. If Perdue disobeyed that order, a court could go a step further and hold him in criminal contempt, a penalty carrying possible jail time.  

“And politics is pretty intense. It can be cult-like,” Seligman said. “What if he’s willing to go to jail? What if the court issues an injunction and he defies it?” 

The House staff report recommends that Congress allow candidates to compel governors to submit “timely, accurate electoral appointments.” It also argues that a federal court could appoint another person to certify the electors if the governor doesn’t comply, citing the Federal Rules of Civil Procedure.

But if that were to happen, Seligman said Perdue could simply dismiss the Biden certificate as unconstitutional and stay in contempt of the court’s order. And in such a multiple-slate scenario, the “governor’s tiebreaker” in the ECA as currently written points Congress to accept the slate signed by a state’s chief executive, who in this case would be Perdue himself — another flaw of the Act that Seligman argues Congress should rectify. 

“The problem is by having that absolute rule, in the absence of some way to guarantee that one and only one legitimate slate will be submitted by states, you’re empowering David Perdue to reverse the results of the presidential election,” Seligman said. 

Burgess warned about such a scenario back in 1888, writing that the “governor’s tiebreaker” that instructs Congress to defer to counting slates certified by chief executives was “too liable to abuse” by unscrupulous governors. 

Burgess cautioned it was “entirely conceivable” that a single slate of electors could come from a process where “notorious fraud and terrorism may have carried the day.”

Congress could empower the courts to serve as a check on the states — and itself

Seligman believes the best bet to prevent both federal or state subversion is enabling a check on the electoral counting process from the federal judiciary, breaking with the House Committee report’s recommendation that objections receive a supermajority to pass both chambers of Congress. 

It’s not clear if the current version of the ECA can be litigated in court. The political question doctrine, in line with the separation of powers, posits that courts should refrain from weighing in on functions constitutionally vested to a co-equal branch of government — in this case, the legislative branch’s 12th Amendment mandate to count Electoral College votes. 

But that would change if Congress directly asked the courts to step in. 

 

The courts — specifically the Supreme Court and its track record in election disputes — are far from perfect. But they have, at least in theory, fewer partisan motives, more widespread societal legitimacy, and more relevant expertise in deciding difficult election law questions than elected officials in the states or Congress. 

The history of contested and disputed elections from 1867 to 2021 is filled with near-misses, what-ifs, and unresolved questions about both the resilience and the limitations of American democracy. How Congress decides to weigh the risks of federal or state-level election subversion in reforming the ECA will determine which of those unknowns are answered, and what peril remains. 

“We would be in a situation of unprecedented constitutional litigation,” Seligman said of state government officials going rogue. “And that’s one of the reasons why I think that we shouldn’t be overly confident in pre-January 6 ways to keep state-level officials in line.”